Charters v. Harper, (1986) 74 N.B.R.(2d) 264 (TD)

• Judge: Barry, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: September 04, 1986
• Jurisdiction: New Brunswick
• Citations: (1986), 74 N.B.R.(2d) 264 (TD)

Charters v. Harper (1986), 74 N.B.R.(2d) 264 (TD);

    74 R.N.-B.(2e) 264; 187 A.P.R. 264

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Charters v. Harper

(F/C/354/86)

Indexed As: Charters v. Harper

Répertorié: Charters v. Harper

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Barry, J.

September 18, 1986.

Summary:

Résumé:

Charters was charged with trafficking in a narcotic and possession of a narcotic for the purpose of trafficking contrary to the Narcotic Control Act. Harper, a Judge of the Provincial Court, refused to hear the charges on the ground that the court lacked jurisdiction to hear serious indictable offences. The charges against Charters were subsequently quashed because of undue delay of the trial of the charges. Charters brought an action for damages against Harper for denial of his rights as guaranteed by ss. 11(b) and 24(1) of the Charter. Harper applied to strike out the statement of claim on the ground that it disclosed no reasonable cause of action and that he was immune from suit by the Protection of Persons Acting Under Statute Act.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed Harper's application.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law, s. 1 - Charters brought an action against a provincial court judge for damages for breach of his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter - The judge alleged he was protected from suit under the Protection of Persons Acting Under Statute Act, while Charters alleged that the Charter superseded the Act - The New Brunswick Court of Queen's Bench, Trial Division, held that the Act was not superseded by the Charter - The court stated that "the necessity for a protective statute could easily be justified to protect honest bona fide acting persons from harassing acts" - The court stated that "courts or judges must not be subject to litigation for acts performed conscientiously in the course of their duties even if in error" - See paragraph 8.

Courts - Topic 230

Judges - Privileges - Official Acts - Privilege from civil liability - Charters brought an action against a provincial court judge for damages for breach of his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter - The judge refused to hear Charters' case on the ground that he had no jurisdiction to hear serious indictable offences - A superior court judge, on appeal, ordered the provincial court judge to hear the charge, the judge refused and the charges were quashed because of undue delay - The judge argued that he was immune from suit pursuant to the Protection of Persons Acting Under Statute Act - The New Brunswick Court of Queen's Bench, Trial Division, held that the Protection of Persons Acting Under Statute Act will not protect a judge who defies an order of an appellate tribunal - See paragraphs 8 to 10.

Courts - Topic 594

Judges - Duties - Duty respecting orders of higher courts - Charters brought an action against a provincial court judge for damages for breach of his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter - The judge refused to hear Charters' case on the ground that he had no jurisdiction to hear serious indictable offences - A superior court judge, on appeal, ordered the judge to hear the charges, the judge refused and the charges were quashed because of undue delay - The New Brunswick Court of Queen's Bench, Trial Division, held that a judge is bound by an order of an appellate tribunal - The court stated that a judge cannot defy an order of an appellate tribunal and then claim protection under the Protection of Persons Acting Under Statute Act - See paragraphs 8 to 10.

Cases Noticed:

Foran v. Tatangello et al. (1976), 73 D.L.R.(3d) 126 (Ont. H.C.), refd to. [para. 10].

Unterreiner v. Wilson et al. (1982), 142 D.L.R.(3d) 588 (Ont. H.C.), refd to. [para. 10].

Sirros v. Moore et al., [1974] 3 All E.R. 776, consd. [para. 10].

Schwartz v. Smith (1964), 45 D.L.R.(2d) 316, refd to. [para. 10].

Janson v. King (1980), 103 D.L.R.(3d) 189 (Sask. Q.B.), refd to. [para. 10].

Rivard v. Morier and Boily, [1985] 2 S.C.R. 716; 64 N.R. 46; 23 D.L.R.(4th) 1, consd. [para. 10].

Ward v. Reed (1882), 22 N.B.R. 279 (C.A.), consd. [para. 14].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 8]; sect. 11(b) [para. 6]; sect. 24(1) [para. 6].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 25 [para. 13].

Protection of Persons Acting Under Statute Act, R.S.N.B. 1973, c. P-20, sect. 1, sect. 2, sect. 3 [para. 7].

Rules of Court (N.B.), rule 23.01(b) [para. 1].

Counsel:

Donald M. Gillis, Q.C. and David Rogers, for the applicant-defendant, James D. Harper;

Thomas R. Evans, for the respondent-plaintiff.

This application was heard on September 4, 1986, before Barry, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following judgment on September 8, 1986: